FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Debus v Condor Energy Services Limited (No 2) [2023] FedCFamC2G 465
File number(s): BRG 137 of 2020 Judgment of: JUDGE EGAN Date of judgment: 1 June 2023 Catchwords: INDUSTRIAL LAW - COSTS – Where Calderbank Offers made soon after commencement of proceedings – where offers rejected outright – where claim dismissed – whether application for indemnity costs ought to be granted – where appropriate order was for the making of an indemnity costs order from the date of first rejection of the First Calderbank Offer – orders accordingly. Legislation: Fair Work Act 2009 (Cth) ss. 545 and 570. Cases cited: Australian International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879
Australian Workers Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23
Calderbank v Calderbank [1975] 3 All ER 333
Kooee Communications Pty Ltd v Primus
Melbourne Stadiums Ltd v Sautmer [2015] FCAFC 20
Telecommunications Pty Ltd (No 2) [2011] FCAFC 141
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 12 May 2023 Date of hearing: 10 May 2023 Place: Brisbane The Applicant: No appearance Counsel for the Respondents: Mr T Spence Solicitor for the Respondents: Saines Legal ORDERS
BRG 137 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAYNE PETER DEBUS
Applicant
AND: CONDOR ENERGY SERVICES LIMITED
First Respondent
CARTER CHISHOLM DUMONT (CEO)
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
1 JUNE 2023
THE COURT ORDERS THAT:
1.The Applicant is liable for the payment to the First Respondent of the First and Second Respondent’s costs of and incidental to the proceeding BRG137/2020, on an indemnity basis, as and from 7 July 2020 until 23 December 2022.
2.The Applicant pay the First Respondent’s costs to be agreed, or failing agreement, to be taxed pursuant to the provisions of r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The trial of this matter took place over four days from 30 May 2022 until 1 June 2022, and on 28 September 2022. The applicant had commenced proceedings on 3 March 2020. He sought orders pursuant to s. 545 of the Fair Work Act 2009 (Cth) (‘the Act’) for reinstatement, compensation and an apology.
The Judgment of the Court dismissing the Application was handed down on 23 December 2022.
On 30 January 2023,…
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- Case
- [2023] FedCFamC2G 465
- Decision Date
CaseChat Overview and Summary
The court examined the legal principles surrounding Calderbank Offers and the criteria for awarding indemnity costs. It found that Debus's claim was not misconceived but was a contentious one that ultimately failed. The court held that Debus's failure to accept the Calderbank Offers was unreasonable, as he did not consider the consequences of rejecting the offers and proceeding with his claims. The court found that Debus's dismissal was due to his unacceptable behaviour, not his mental health condition, and that he had not provided sufficient evidence to support his claims. The court concluded that the respondents were entitled to indemnity costs from the date of the first Calderbank Offer.
The court ordered that Debus was liable for the respondents' costs of and incidental to the proceeding, on an indemnity basis, from 7 July 2020 until 23 December 2022. The costs were to be agreed upon or, failing agreement, assessed. The court emphasised the importance of considering the consequences of rejecting reasonable offers of compromise and the need for parties to give real consideration to the costs and benefits of prosecuting their claims.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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